Section 75 claim refused

TheDogmother

Hello to all money-savers! I'm a long-time lurker, first time poster, so go gentle with me! Looking for help as to whether it's worth pursuing this, or to give up and count our losses.

In February of this year husband paid £1,872 for a car from a local dealer (limited company) for our 17-year-old son on his MBNA credit card. The car broke down because of a fault with the cooling system on the way back from the dealer, who came out & fixed it. After that the problem recurred several times, with the dealer coming out on one occasion, taking the car away and again fixing it. On that occasion my husband made a verbal request for a refund which was refused.

In July we got tired of the ongoing problem, and went to another local dealer to ask what he would offer for part-exchange on another car. He made some checks, and advised that the car we'd originally been sold was a Category D write-off. This hadn't been mentioned in the original web advert, or at the point of sale. We wrote and hand delivered a letter to the vendor of the original car requesting a refund of the money we'd paid, under the terms of the Sale of Goods Act, and Misrepresentation legislation. After a heated discussion, the vendor informed us that the limited company from which we'd bought the car had gone into administration (he's now trading from the same premises under a different name).

We made a Section 75 claim to MBNA, from whom we've received a letter today informing us that they've rejected the claim because the purchase of the car was registered in our son's name, and he's not their customer.

Apologies for the length of the above but .... should we carry on the fight? Grateful thanks for any help you can give, even if it's "give up now"!

bris

No, you can't make a s75 claim for a product you don't use. To make a s75 claim the product must be for your own use, gifts etc are excluded.
You may be able to get round it if you share the car and can show your husband is reliant on it. If you have another car this may be difficult and is a slim chance, but if you can convince them it's your car too then you might get somewhere.

YorkshireBoy

The FOS website has some case files on 'gifts' and purchases where the main cardholder is not a beneficiary. You may want to consult those and give them a call for some guidance.

Now that you've had a final response from MBNA you should refer to the FOS anyway (as is your right).

Your son may be the registered keeper, but the registered keeper is not necessarily the legal owner...so that's what your approach should be.

chattychappy

The cardholder must be in contract with the merchant. If I buy something on a CC "for" someone else, then I am the owner until I give it to that other person. s75 will protect me.

If someone else buys something, and I put down my CC to pay for it, then s75 doesn't protect me.

But there are some complications - YB's advice is good (as it always is, well 99% of the time)! Look at the FOS stuff on gifts.

Misrep typically gives you a stronger claim than breach.

TheDogmother

Many thanks for quick responses! YB - my son is the registered keeper of the car, but MBNA's issue is that the sales invoice was in his name. (Foolishly, we thought it would be nice if his first car was sold "to" him!) Their argument is that this contravenes the creditor-debtor-supplier chain required by Section 75. Any further thoughts you can offer? And are we better going the FOS route than taking legal advice? (Our household policy with Direct Line includes legal cover ....)

dalesrider

TheDogmother wrote: »

Many thanks for quick responses! YB - my son is the registered keeper of the car, but MBNA's issue is that the sales invoice was in his name. (Foolishly, we thought it would be nice if his first car was sold "to" him!) Their argument is that this contravenes the creditor-debtor-supplier chain required by Section 75. Any further thoughts you can offer? And are we better going the FOS route than taking legal advice? (Our household policy with Direct Line includes legal cover ....)

You might as well go to FOS. Although I would not hold out any hope. As MBNA are correct.

I would think legal action against the trader maybe the only way. Not sure how the fact the company was wound up and then restarted would affect things.
Bet with a bit of digging you will find they have done it a few times.

Lesson of the day always do your own HPI check before buying.

YorkshireBoy

dalesrider wrote: »

You might as well go to FOS.

Agreed.

But be careful about starting legal action (yet) because if I remember correctly this would prevent you from using the services of the FOS later should you choose to go that way instead.

Maybe call the insurance legal team for their opinion though?

But it doesn't look good does it?

OP, did you take a look at the FOS case files?

chattychappy

TheDogmother wrote: »

YB - my son is the registered keeper of the car, but MBNA's issue is that the sales invoice was in his name. (Foolishly, we thought it would be nice if his first car was sold "to" him!) Their argument is that this contravenes the creditor-debtor-supplier chain required by Section 75.

Oh dear. Well spotted by MBNA and their reasoning is correct in my opinion. Who they made the invoice out to isn't conclusive evidence that the car was sold to the person they write down (eg they could have made a mistake) but from what you say this is a true reflection of what happened. Likewise, a company name on an invoice isn't conclusive evidence that that was the company that sold something to you, especially in the case where you have already paid. But again, difficult to deny if nothing was said at the time.

You could argue that they should endeavour to chargeback - but probably they can't if the company has gone bust. Though chargeback doesn't give direct rights to a cardholder, the FOS said that it would expect a CC to use these where available to assist a cardholder. You might have a claim if the CC neglected this option at a time it was available, but I really am clutching at straws. This would be an FOS complaint rather than a county court claim and with luck MBNA might just make an offer rather than have the agro of dealing with it.

Sorry to say, I think you're stuffed on the CC claim.

I would doublecheck about the company going bust. Is all the paperwork consistent (check company registration number) with the details of the company you have been told has gone bust? If the paperwork omits the registration number and/or exact limited company name, then you might have a personal claim against the guy (or even another company). Since you have the insurance, I would get legal advice on this point if you notice anything wrong at all. And of course, just because a company is in administration doesn't mean you get nothing (usually does). You need to contact the administrator to check the status. Never take the word of a trader that they are in administration.

TheDogmother

Once again, thanks for all comments. Looked at FOS website re: gifts, but couldn't find anything that really matched the circumstances. Will get legal opinion and see if there's anything we can do. Caveat emptor, eh?!

TheDogmother

I've just checked the sales invoice again and although it has my son's name at the top, it's my husband's signature in the box that says "I confirm that I am the buyer of this vehicle..." etc etc.
It ain't over til the fat lady sings!

dalesrider

chattychappy wrote: »

You could argue that they should endeavour to chargeback - but probably they can't if the company has gone bust. Though chargeback doesn't give direct rights to a cardholder,.

A company going bust makes no diffrence to a chargeback. Or how do you think all the chargebacks that were done for the travel co that folded in the last few years worked....

MBNA will have looked at the chargeback route 1st and to be honest. I would guess at out of time (120 days) on this. Remember a chargeback does not cost MBNA anything. CCA could.

With hindsight the OP should have simply said in the 1st instance when the car brokedown on the way home. I want my money back on the grounds of "Not fit for purpose". But like most of us will have given the dealer the benefit of doubt and thought it was a one off.
Sadly as has now been proved there was a fault which has got beyond a joke.

Time that consumers LEGAL rights were backed up by a body that could actually take action against these traders and force them out of buissness. While getting the issue resolved for the purchaser.